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On Ferguson, a Fury of Confusion

It seems only a few short weeks ago that the political talking heads were lighting their hair on fire over the unstoppable threat of Ebola. Now, the virus that continues to ravish West Africa has fallen out of American headlines. A few years ago, it was Occupy Wall Street that was heralded as the watershed moment that would forever divide our political life into a before and after.

So, even though most major news outlets continue to give top billing to the fallout over the shooting of Michael Brown in Ferguson, Missouri, it’s only a few short weeks before the fourth estate moves on. (Possibly to yet another standoff over a government shutdown, just in time for the Christmas travel season.)

That’s the nature of our collective attention span, inspiring a quote from the early days of the Obama administration: “A crisis is a horrible thing to waste.” And when it comes to the tragic events that have transpired in Ferguson, people everywhere have been sputtering to make the most of it.

I’m not going to attempt a comprehensive analysis of the shooting death of Michael Brown, or of the process that saw the police officer who shot him, Darren Wilson, go unindicted. That’s been done elsewhere. But I do want to make a few points that might shed some light on what has been a particularly loud but unedifying debate.

First, there is a fundamental tension that arises from trying to make criminal proceedings the outlet for social grievances. When the criminal justice system works well, it does so because it operates under a presumption of innocence and it deals with the most narrowly relevant facts of a case. Society, on the other hand, is tremendously more complicated than that and oftentimes requires a more expansive analysis.

What does this mean concretely? It means that there are a host of questions that are insightful when trying to understand what is happening in Ferguson, and entirely irrelevant when asking whether Officer Wilson should have been indicted. Among these, perhaps the most distressing relates to the fact that Mr. Brown’s body was left out in the street for hours after he was shot.

That fact speaks volumes about the competence and sensibility of the Ferguson authorities, and tells us nothing about whether or not Officer Wilson acted legally when he shot Michael Brown. Yet, it seems to come up again and again in discussions that purport to deal precisely with that question.

There are other examples. In the early coverage of the shooting, America was introduced to the dramatic disparity between the racial makeup of Ferguson and that community’s police force – also telling in regard to broader social questions, and also irrelevant to whether or not Officer Wilson acted legally or appropriately.

In fact, there are many disturbing details about Ferguson that are not relevant to the question of Officer Wilson’s guilt or innocence. The fact that such issues are so easily confused is a good example of why courts are required to pay attention to strict rules about what qualifies or doesn’t qualify as evidence in a legal proceeding.

Second, many commentators don’t seem to understand the basics of self-defense.

I want to make it clear that I am not taking a position on whether or not Officer Wilson was acting appropriately in self-defense when he shot Michael Brown. I am not even taking a position on whether or not there is enough available in the public record to reach a conclusion on that, though I am skeptical that there is. Simply put, I have not been convinced either way. Our legal system doesn’t require me to have an opinion on that, and I ultimately think that that question is irrelevant to whether or not this case has shone important light on legitimate grievances.

However, I do want to point out that too much is made of the number of shots that Officer Wilson fired. Similarly, suggestions that officers should “shoot to wound” or that unarmed suspects cannot possibly pose a lethal threat are woefully uninformed. The truth is that firing a gun accurately in the heat of an altercation is difficult to do. Further, despite what Hollywood would have you believe, gunshot wounds cannot be relied on to immediately disable a person.

In the movies, people who are shot – that is, those who don’t fly across the room in mockery of the laws of physics – either immediately expire from a gunshot wound to a vital area or are immediately stopped from the shock of the wound. Neither is true. In real life, pain plays a minor immediate role. People who are shot can be disabled either because the wound damages a structure of their anatomy that is necessary for locomotion (like a major bone or joint) or as a result of a drop in blood pressure from blood loss.

This means that it is very possible for a major gunshot wound (even a fatal gunshot wound) to not disable a determined assailant.

How credible is the information I just provided you? Having never been on either end of a gun fired in anger, I can’t tell you. But I can assure you that it represents the consensus view of self-defense and law enforcement experts. This means that police are trained neither to “shoot to wound” nor to “shoot to kill,” bur rather to “shoot to stop.” Which means placing as many shots as possible on center-mass in order to minimize marksmanship error and maximize blood loss.

In other words, the half-dozen shots that Officer Wilson fired from his service weapon actually represent greater restraint than we are used to in these sorts of stories. That assumes that Wilson’s version of events is true. If it isn’t, then he might be guilty of a crime. The point is that none of it hinges on the number of shots fired, which was not unusual given the altercation Officer Wilson described.

Third, the clearest fact to emerge from the events in Ferguson is the manifest incompetence of the Ferguson Police Department. Starting with whatever string of decisions led to Michael Brown’s body being allowed to remain on the street for several hours, the local authorities have done their level best to make the situation much worse than it might have otherwise been. In the initial aftermath of the shooting, for example, the local police department underestimated the public’s need for information. This created a vacuum within which the story took shape before anything but the most rudimentary – and inflammatory – facts were known. Then, they inexplicably went on a campaign that looked to the all the world like an exercise in character assassination. It might have played well with some parts of the national audience, but it was a disaster with their local constituency.

To say nothing of the strong-arm tactics that likely contributed to increased tension and violence during the initial wave of protests, and set the stage for the ugly scenes that followed the grand jury’s decision not to indict Officer Wilson. Whether you think Wilson is guilty of murder or not, the Ferguson police department has a lot to answer for.

So now what? The most likely outcome is that this story will eventually go away and very little will have changed. That’s always a risk when you try to personalize an abstract problem, which is why the Civil Rights movement selected Rosa Parks so carefully.

When Trayvon Martin was killed, many Americans were all too willing to affirmatively defend George Zimmerman in a murky case involving little definitive evidence. Then, after Zimmerman was acquitted, his credibility took a hit when he was arrested on charges of assault for pointing a shotgun at his girlfriend. Maybe he wasn’t quite as white as the driven snow. Then, Cliven Bundy became the avatar for standing up to government oppression and became a sort of folk hero for the American right. But it turned out that he’s an unreformed racist, so that was dropped.

Michael Brown, with not quite so bright a future as was promised and not quite so clean a story as was sold, will probably join that list. That’s a shame. Analytically, the crucial error is mistaking the genesis of a protest with the forces that animate that protest. In the end, movements are more successful when those two things resonate, but they are not any less legitimate when they don’t.

And while there might be globs of reasonable doubt as to whether or not Officer Wilson shot Mr. Brown in self-defense, there can be no reasonable doubt as to whether or not there is something fundamentally broken in how our country approaches policing communities of color.

The wave of anger and frustration that has washed over wide segments of our country is proof positive of, at the absolute least, massive discontent within and on behalf of those communities. In Ferguson, it’s led either to the unnecessary death of Michael Brown or the shameful vilification of Darren Wilson, who might have been guilty of little more than bringing his training to bear on a life-threatening situation. Quite possibly, it led to both.

Sooner or later, it will happen again. And sooner or later, that’s a problem our country will have to face.